Czech and Central European Yearbook of Arbitration - 2013: Borders of Procedural and Substantive Law in Arbitral Proceedings

Author(s):

Alexander J. Bělohlávek

Filip Cerný

Prof. Judr. Naděžda Rozehnalova

ISBN:

978-1-937518-21-9

Page Count:

438 pages

Published:

March, 2013

Jurisdictions:

Europe

Czech Republic

Last Updated:

March, 2013

The Czech Yearbooks Project, for the moment made up of the Czech Yearbook of International Law® and the Czech (& Central European) Yearbook of Arbitration®, began with the idea to create an open platform for presenting the development of both legal theory and legal practice in Central and Eastern Europe and the approximation thereof to readers worldwide. This platform should serve as an open forum for interested scholars, writers, and prospective students, as well as practitioners, for the exchange of different approaches to problems being analyzed by authors from different jurisdictions, and therefore providing interesting insight into issues being dealt with differently in many different countries.

The Czech (& Central European) Yearbook of Arbitration® , the younger twin project within the Czech Yearbooks, primarily focuses on the problematic of arbitration from both the national and international perspective.

The use of arbitration as a method of dispute resolution continues to increase in importance. Throughout Central and Eastern Europe, arbitration is viewed as being progressive, due to its practical aspects, and to its meeting the needs of specialists in certain practice areas. Central and Eastern Europe, the primary, but not exclusive, focus of this project, is steeped in the Roman tradition of continental Europe, in which arbitration is based on the autonomy of the parties and on informal procedures. This classical approach is somewhat different from the principles on which the system of arbitration in common-law countries is based. Despite similarities among countries in the region, arbitration in Central and Eastern Europe represents a highly particularized and fragmented system.

One shortcoming in the use of arbitration in Central and Eastern Europe is the absence of comparative standards or a baseline that would facilitate the identification of commonalities and differences in individual countries, and help resolve problems that are common throughout the region. The CYArb® project aims to address this issue and provide a forum for comparisons of arbitration practice and doctrine in countries within the region, and in relation to practices internationally. It sheds light on both practical and academic aspects within these countries, and compares those approaches to broader European and international practices. This project will also foster a broad exchange of legal research and other information on the subject.

The third volume of the CYArb® focuses on the blurry area which borders the procedural and substantial law. Editors, being motivated with an endeavour to provide the readers with complex insight into the problematic, invited authors of Civil same as Common law jurisdictions to provide their insight and analysis on the problems of i.e. mandatory provisions of procedural same as substantive law, issues of application of law in arbitration, adjudication according to the ex aequo et bono principles, issues of the burden and standard of proof and others. The issues are presented on highly comparative basis provided mostly by practitioners who are simultaneously involved in academic activities.

The book is divided into four sections. The backbone sections encompass the doctrinal articles of the authors same as case law analysis of the domestic courts from the region relating to the topic, covering the case law of Constitutional, General same as Arbitral courts of the countries from the Central European Region.

The rest of the book covers the news in the arbitration area same as interesting arbitration events or published articles and books of the authors from the region.

The new volume of the The Czech (& Central European) Yearbook of Arbitration® : Borders of Procedural and Substantive Law in Arbitral Proceedings (Civil versus Common Law Perspectives) brings useful resource for everyone who is dealing with arbitration in all of its aspects, be it an academic, practitioner, law or international relations student who seeks global compendium on the issue including an overlap to economic and politic aspects of the problematic.

ARTICLES

Andrzej Kubas │ Kamil Zawicki
The Scope of Mandatory Provisions of Procedural and Substantive Law Binding upon a Court of Arbitration

Alexander J. Bělohlávek
Application of Law in Arbitration, Ex Aequo et Bono and Amiable Compositeur

Vit Makarius
The Nature of the Burden and Standard of Proof in International Commercial Arbitration

Klára Drličková
The Law Applicable to Arbitration Agreements; "Lex Arbitri" or "Lex Causae" of the Principal Contract?

Leonid Shmatenko
Is Lex Mercatoria Jeopardizing the Application of Substantive Law?

Vasily N. Anurov
Cause of Action in Investment Arbitration

Marina P. Bardina
Determination of Substantive Law by International Commercial Arbitration in Russian Law, ICAC Rules and Arbitration Practice

CASE LAW
Section A
I. Current Case Law of the Constitutional Courts and General Courts on Arbitration
1. Czech Republic
Alexander J. Bělohlávek
2. Hungary
Alexander J. Bělohlávek
3. Poland
Andrzej Kubas | Kamil Zawicki | Magdalena Selwa
4. Slovak Republic
Alexander J. Bělohlávek

II. Court Rulings on the Application of Law in Arbitration
Czech Republic
Alexander J. Bělohlávek

Section B
Case Law of the Arbitral Tribunals: Decisions of Arbitral Tribunals within the Jurisdiction of the Arbitration Court Attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic

1. Current Case Law on Arbitration
Alexander J. Bělohlávek

2. Application of Law in Arbitration
Alexander J. Bělohlávek

3. Borders of Procedural and Substantive Law in Arbitration
Alexander J. Bělohlávek

BOOK REVIEWS
Alexander J. Bělohlávek
Act on Arbitration Proceedings and Enforcement of
Arbitration Awards, A Commentary

NEWS & REPORTS
Rajko Knez - Marko Djinović - Nejc Lahne
Arbitration in Slovenia - A New Perspective

Alexander J. Bělohlávek
New Rules of the Arbitration Court Attached to the
Economic Chamber of the Czech Republic and
Agricultural Chamber of the Czech Republic

Bohumil Poláček
Arbitration Expert Witnesses

Miluscarone Hrnčiříková
Fifth Annual Olomouc Pre-Moot

Current Events, Past & Ongoing CYIL/CYArb Presentations

Selected Bibliography of Czech, Slovak and Polish
Authors for 2012

Important Web Sites

Index

Alexander J. Bělohlávek Univ. Prof., Dr. jur. Et Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/Czech Republic, Senior Partner of the Law Offices Bělohlávek (Prague/Czech Republic; Branch N.J./US), Dept. of Law Sciences Faculty of Economics, Ostrava, Czech Republic (in house); Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, Czech Republic (external). Chairman of the Commission on Arbitration ICC National Committee, Arbitrator at the Court of Arbitration attached to the Economic.

Prof. JUDr. Naděžda Rozehnalova, CSc. - professor of International and European Law the Faculty of Law of Masaryk University. Areas of specialization: private international law, commercial international law, arbitration. Author of a host of scholarly monographs and articles in professional periodicals both in the Czech Republic and abroad. Since 2007, Dean of the Faculty of Law of Masaryk University.

JUDr. Filip Černý graduated from the Faculty of Law, Masaryk University in Brno (2007). He is currently employed as an attorney trainee in Prof. Bělohlávek's Law Firm; he is also an external candidate for the doctoral degree at the Department of Commercial Law, Faculty of Law, Charles University. His academic interests focus on public and private international law with an emphasis on arbitration, primarily investment arbitration.

MAIN CONTRIBUTOR BIOS

Professor Andrzej Kubas is an Attorney, a former lecturer at Jagiellonian University of Kraków and the former head of the Chair of Civil Law. He is presently the Senior Partner at the Polish law firm of KKG Kubas, Kos, Gaertner. He is an expert in civil and commercial law, international commercial arbitration and litigation. Professor Kubas has also acted as arbitrator in numerous domestic and international proceedings. Formerly, he was a member of the Legislative Council of the Prime Minister of the Republic of Poland and vice-president of the Polish Bar Association. He is also an author of many books and articles.

Vit Makarius is a Senior Associate with Havel, Holasek & Partners, Prague, whose practice focuses on international arbitration. Prior to joining Havel, Holasek & Partners, he served a four-year term as a case lawyer with the European Court of Human Rights, where he worked on commercial law, civil law and regulatory matters.

Leonid Shmatenko is a Junior Fellow and Doctoral candidate at the Chair of German and Foreign Public Law, European Law and Public International Law at the Heinrich-Heine-University of Düsseldorf.
Vasily N. Anurov is a candidate of jurisprudence, lecturer at the Faculty of Private International Law, Moscow State Law Academy, and Arbitrator of the Vilnius Court of Commercial Arbitration. He also holds an LL.M in Mineral Law and Policy with distinction (Dundee, Scotland).

Marina P. Bardina is a Professor of the Chair of Private Law of the All-Russian Academy for Foreign trade, Senior researcher of the Sector of Legal regulation of International economic relations of the Institute of state and law of the Russian Academy of Sciences. Professor Bardina is also an enlisted arbitrator of the International commercial arbitration court at the Russian Chamber of Commerce and Industry, Arbitration court at the Russian Union of Industrialists and Entrepreneurs, Arbitration Commission of Moscow Inter-Bank Currency Exchange, Arbitration Court at the Fund "Law and Economy of Fuel-Energetic Complex," Arbitration Court at the OJSC "Gazprom."

Advisory Board
Anton Baier, Vienna, Austria

Pierre Lalive, Geneva, Switzerland

Iván Szász, Budapest, Hungary

Silvy Chernev, Sofia, Bulgaria

Nikolay Natov, Sofia, Bulgaria

Stanislaw Soltysiński, Warsaw, Poland

Sir Anthony Colman, London, UK

Piotr Nowaczyk, Warsaw, Poland

Jozef Suchoža, Ko&scaron;ice, Slovak Republic

Bohuslav Klein. Prague, Czech Republic

Vladimír Týč., Brno, Czech Republic

Editorial Board

Alena Bányaivová, Prague, Czech Republic

Matthias Scherer, Geneva, Switzerland

Marcin Czepelak, Krakow, Poland

Filip Černý, Prague, Czech Republic

Viorel Mihai Ciobanu, Bukurest, Romania

Wolfgang Hahnkamper, Vienna, Austria

Vít Horáček, Prague, Czech Republic

Marek Furtek, Warsaw, Poland

Vladimir Khvalei, Moscow, Russia

Milu&scaron;e Hrnčiříková, Olomouc, Czech Republic

Lászlo Kecskes, Budapest, Hungary

Tomá&scaron; Řezníček, Prague, Czech Republic

Asko Pohla, Talinn, Estonia

Květoslav Růžička, Pilsen/Prague, Czech Republic

Jiří Valdhans, Brno, Czech Republic

Ian I. Funk, Minsk, Belarus

Thomas Schultz, Geneva, Switzerland

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